Defy Federal Courts!

There's an argument to be made here. It was Andrew Jackson's argument. Hammer goes farther, asserting that the power to be the final hand on Constitutional questions actually only dates back to the 1950s.
In 1958, in a little-known opinion known as Cooper v. Aaron, the Supreme Court quietly effected its most nakedly self-aggrandizing power grab ever. In Cooper, for the very first time, the Supreme Court pronounced itself to be the sole and final binding arbiter of constitutional disputes. The Cooper Court said:
In 1803, Chief Justice Marshall, speaking for a unanimous Court, referring to the Constitution as "the fundamental and paramount law of the nation," declared in the notable case of Marbury v. Madison ... that "It is emphatically the province and duty of the judicial department to say what the law is." This decision declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution, and that principle has ever since been respected by this Court and the Country as a permanent and indispensable feature of our constitutional system.
Marbury, of course, stands for nothing even remotely resembling the judicial supremacist sentiment the Cooper Court affixed to it. As Michael Stokes Paulsen has persuasively argued, Marbury instead stands not for judicial supremacy but for constitutional supremacy: That is, each of the three branches has an independent and binding fealty to interpret and abide by the Constitution, as it sees fit, in line with its own carefully delineated constitutional duties and powers. As Josh Blackman noted last year, the Cooper Court's radical claims amounted to "unprecedented assertions of judicial power."
The argument against is that the court systems is serving as a "cooling off" period for Presidential power -- one that, thanks to Trump and McConnell's success in promoting conservative judges, could be more effective against the next progressive President if it is allowed to stand now. Break it today, and it'll definitely be broken tomorrow. Abide by it now, and there's a chance it'll still be in place to restrain the next bad president.

1 comment:

E Hines said...

From Cooper we're to accept the Court's position that the body that passed the bill cannot be an arbiter of what the law they passed is, that the President who signed the bill into law cannot be an arbiter of what the law is.


Still, even were that error corrected, the delays inherent in a split-power political system give the courts, among others, room to force a cooling off period. For Court power as well as Presidential.

Hammer's argument is a basis of a case I argued with Texan99 a few years ago that Congress (in concert with the President) could overrule Court decisions with subsequent legislation.

Eric Hines